Case 3:10-cv-00188-HEH Document 87 Filed 08/16/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

COMMONWEALTH OF VIRGINIA, )
ex rel. Kenneth T. Cuccinelli, II, in his official )
capacity as Attorney General of Virginia, )
)
Plaintiff, )
) Civil Action No. 3:10-cv-00188-HEH
v. )
)
KATHLEEN SEBELIUS, Secretary of the )
Department of Health and Human Services, )
in her official capacity, )
)
Defendant. )
)

ANSWER

The defendant, Kathleen Sebelius, Secretary of the United States Department of Health

and Human Services, by the undersigned counsel, hereby answers the Complaint of the plaintiff,

the Commonwealth of Virginia.

1. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

2. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

3. Admit that this paragraph accurately quotes Virginia Code § 38.2-3430.1:1.

Otherwise, this paragraph contains only conclusions of law and not averments of fact to which a

response would be required.

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4. Deny, except to admit that the minimum coverage provision of Section 1501 of

the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148 (2010), that the

plaintiff challenges here does not take effect for several years.

5. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

6. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

7. Deny the first sentence. The second sentence contains only conclusions of law

and not averments of fact to which a response is required.

8. Deny, and separately aver that while the defendant, Kathleen Sebelius, in her

official capacity as the Secretary of the United States Department of Health and Human Services,

is responsible for administering many provisions of the ACA, the Secretary of the Treasury is

primarily responsible for the administration of the minimum coverage provision that the plaintiff

seeks to challenge in this action.

9. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

10. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

11. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

12. Deny.

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13. Deny.

14. Deny, and separately aver that: (a) the ACA establishes comprehensive reforms

of the interstate health insurance market; (b) those reforms include a requirement that insurers

guarantee the issue of policies to persons with pre-existing conditions, at non-discriminatory

rates; (c) because of these reforms, in the absence of a minimum coverage provision, many

people would have the incentive to delay obtaining coverage, or to drop coverage, until they fall

ill; (d) the remaining insured population would therefore consist disproportionately of those with

the highest current medical expenses, leading to more expensive premiums and an increase in the

uninsured population; and (e) therefore Congress had a rational basis to conclude that the

minimum coverage provision is essential to ensure the success of the ACA’s larger regulation of

the interstate health insurance market.

15. Deny the first sentence. Deny the second sentence, except to admit that the

Senate Finance Committee asked the Congressional Research Service (“CRS”) to prepare a

report addressing the constitutionality of the minimum coverage provision. The third sentence

contains only a characterization of the quoted publication, which speaks for itself, and to which

no response is required.

16. This paragraph contains only characterizations of judicial decisions which speak

for themselves and conclusions of law, but not averments of fact to which a response would be

required.

17. Deny, and separately aver that the decision whether to purchase health insurance,

or whether to pay for health care expenses out-of-pocket and to rely on a backstop of free

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services for the care (including catastrophic care) that one cannot afford, is an economic

decision, and that that economic decision has a substantial effect on interstate commerce.

18. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

19. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

20. This paragraph contains only conclusions of law and not averments of fact to

which a response would be required.

First Defense

This Court lacks subject-matter jurisdiction because the plaintiff lacks standing under

Article III of the United States Constitution.

Second Defense

This Court lacks subject-matter jurisdiction because the plaintiff lacks prudential

standing.

Third Defense

This Court lacks subject-matter jurisdiction because the plaintiff’s claims are not ripe

under Article III of the United States Constitution.

Fourth Defense

This Court lacks subject-matter jurisdiction because the plaintiff’s claims are not

prudentially ripe.

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Fifth Defense

This Court lacks subject-matter jurisdiction pursuant to the Anti-Injunction Act, 26

U.S.C. § 7421(a).

Sixth Defense

The complaint should be dismissed for failure to join a necessary party, namely the

Secretary of the Treasury, who, unlike the defendant, is charged with the implementation of

Section 1501 of the ACA.

Seventh Defense

The complaint fails to state a claim upon which relief can be granted.

The defendant specifically denies all allegations in the complaint not otherwise answered

herein. In addition, the defendant denies that the plaintiff is entitled to the relief requested in the

prayer for relief, or to any relief whatsoever.

WHEREFORE, the defendant requests that the plaintiff’s prayer for relief be denied, that

this action be dismissed, and that the defendant be awarded her costs and such other relief as may

be appropriate.

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DATED this 16th day of August, 2010.

Respectfully submitted,

TONY WEST
Assistant Attorney General

IAN HEATH GERSHENGORN (admitted pro hac vice)

Deputy Assistant Attorney General

NEIL H. MacBRIDE
United States Attorney

By: /s/ Jonathan H. Hambrick

JONATHAN H. HAMBRICK, VSB # 37590
Assistant United States Attorney
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219
Telephone: (804) 819-5400
Fax: (804) 819-7417
Email: jay.h.hambrick@usdoj.gov

JENNIFER R. RIVERA, VSB # 29281

Director
SHEILA M. LIEBER (admitted pro hac vice)
Deputy Director
JOEL McELVAIN (admitted pro hac vice)
Senior Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW, Room 7332
Washington, D.C. 20001
Telephone: (202) 514-2988
Fax: (202) 616-8202
Email: Joel.McElvain@usdoj.gov

Attorneys for the Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of August, 2010, I electronically filed the foregoing

with the Clerk of Court using the CM/ECF system, which will send a notification of such filing

(NEF) to the following:

Earle Duncan Getchell, Jr.

Charles E. James, Jr.
Stephen R. McCullough
Wesley Glenn Russell, Jr.
Office of the Attorney General
900 E. Main Street
Richmond, Virginia 23219

/s/ Jonathan H. Hambrick

JONATHAN H. HAMBRICK, VSB # 37590
Assistant United States Attorney
Office of the United States Attorney
600 East Main Street, Suite 1800
Richmond, Virginia 23219
Telephone: (804) 819-5400
Fax: (804) 819-7417
Email: jay.h.hambrick@usdoj.gov